Will Sharifs stand of fall after Avenfield

The recent verdict given by the accountability court against the Sharif family is an eye opener for everyone and will restore confidence in the judiciary proving that everyone is equal before the law.

An Accountability Court convicted Nawaz Sharif under Section 9(a)(v) of the National Accountability Ordinance 1999, and sentenced him for eleven years imprisonment along with a fine of £8 million pounds. His daughter, Maryam Nawaz Sharif, has also been convicted under the same law for aiding and hatching a conspiracy to assist the accused in the concealment of properties and preparing a bogus trust dated back to 2005.

Consequently, she was sentenced to eight years imprisonment along with a fine of £ 2 million pounds. The other co-accused, Nawaz Sharif’s son-in-law Muhammad Safdar, has been sentenced to a year in jail.

According to the judgement, the accused have also been barred from contesting elections as well as holding any public office for a period of ten years, which shall start from the date of their release once they have served their sentence.

Under the relevant law of the National Accountability Ordinance, when the prosecution has adduced enough evidence that the accused’s assets are disproportionate to their source of income, then the onus to provide a rebuttal and relevant proof shifts onto the accused.

This is not the first time the court has taken such view. In the past as well, there are plethora of judgements, like 2007 MLD (Monthly Law Digest) Hakim Ali Zardari versus State, which states that in accountability references filed under National Accountability Ordinance 1999, if the prosecution side has provided sufficient evidence then the onus shifts to the accused to prove their assets in proportionate to their sources of income.

With reference to Maryam Nawaz’s case, the accused is still not eligible to contest the elections, even if the the sentence is suspended while her appeal remains pending

The judgements have delineated that in case the accused have not rebutted the statutory presumption through cogent then the court will hold the presumption that accused persons are guilty and prosecution will succeed in proving their case beyond a shadow of doubt under Section 14 of the same law.

Secondly, the extent of pecuniary sources of property that were found in his possession must be known; thirdly, the sources of income of the accused; last but not least to prove that the assets were disproportionate to their means of income.

In the Avenfield properties reference, it was declared by the honourable judge that the prosecution has adequately proved beyond a shadow of doubt that Nielson and Nescol Limited owned the Avenfield properties, and the beneficial owner was Maryam Nawaz Sharif.

Moreover, at the time of purchase, Hussain Nawaz was twenty, Maryam Nawaz eighteen and Hassan Nawaz was seventeen years old. They had no adequate source of income and thus became benamidars who had become an accessory and aided the former prime minister Nawaz Sharif.

It is unlikely that that sentence awarded to Nawaz Sharif and Maryam Nawaz would be suspended since the superior court has laid down dictum, for instance in 2018 PCrlj (Pakistan criminal law journal) Note 54, that if the sentence is not short and secondly, through tentative assessment of evidence in case the evidence is of high probative value, then the courts normally do not suspend the sentence under Section 426 Criminal Procedure Code (CrPc) during the pendency of appeal.

Nevertheless, the sentence awarded to Muhammad Safdar may be suspended as it is considered a short sentence while the appeal shall remain pending.

There is also a lot of discussion on social media that if the sentence is suspended while the appeal remains pending, then Maryam Nawaz shall become eligible to contest the election. This is not true.

A person shall not qualify to contest the election until the conviction is either suspended or set aside as laid down in 2013 CLC (civil law cases) at page1856. Merely suspension of a sentence does not automatically result in suspension of conviction as laid down in this judgement. There has also been a lot of talk that the president has the power to grant pardon to the accused persons under Article 45 of the Constitution of Pakistan, which stipulates:

“The President shall have the power to grant pardon, reprieve and respite and to remit, suspend or commute any sentence passed by any court, tribunal or other authority.” This possibility cannot be ruled out that since the current president has affiliations with Pakistan Muslim League — Noon (PML-N), hence there is a likelihood that he may exercise his powers to grant pardon to the accused persons.

However, while the constitution has granted power to the president to grant pardon with regards to the sentence, the president has no judicial powers to set aside the conviction or declaration of guilt. Hence, the disqualification from contesting the elections shall remain intact even if the president grants a pardon.

The judgement needs to be executed in the courts of UK as the accountability court has also declared that the Avenfield properties shall stand forfeited. In order to implement the decision of the court, there is no requirement of any agreement to take place between the UK government and Pakistan’s government because after the passage of Unexplained Wealth Order a few years ago in the UK, the accountability court’s judgement can be executed forthwith.

No doubt, the recent verdict can act as a catalyst to boost Pakistan Tehreek-e-Insaf’s (PTI) election campaign whereas PML-N will use the court’s verdict to gain sympathy vote and frame its narrative to undermine the transparency of elections scheduled for July 25.

The writer is a human rights activist, constitutional lawyer and a teacher. He can be contacted at sheraz.zaka@gmail.com